The venerable American Law Institute, established nearly a century ago to address rising complexity and uncertainty in the common law, has begun a project to restate federal Indian law. Along with my co-reporters Wenona Singel and Kaighn Smith, I serve as reporter for the project. We take our appointments very seriously—it is a “distinguished honor.” G. Edward White, From the Second Restatements to the Present: The ALI’s Recent History and Current Challenges, 16 Green Bag 2d 305, 317 (2013). Our goal is not to offer answers to every contested question in the field, but to focus on broadly understood doctrines and concepts such as sovereign immunity, the federal–tribal trust relationship, and the interpretation of Indian treaty provisions.
The outline of the project started out simple. Because there are three sovereigns at play in federal Indian law—federal, tribal, and state—the three sections or chapters of the restatement would be dedicated to each sovereign. Chapter 1 is dedicated to exploring the contours of Congress’ Indian affairs powers, Indian treaties, the canons of construction, and the federal–tribal trust relationship. (The current draft is Restatement of the Law of American Indians, Preliminary Draft No. 3 (Feb. 5, 2015). It covers chapter 1 and includes outlines of chapters 2 and 4.)
Chapter 2 establishes that tribal governance authority is inherent and that Congress must clearly state its intention to abrogate tribal sovereignty before courts will reach that conclusion. Chapter 2 also explores the powers of Indian nations, such as the powers for each nation to define its own citizenship criteria, to tax, and to exercise regulatory and adjudicatory jurisdiction over persons within its territory. Chapter 3 will address state authority in Indian country.
The Institute has asked us to expand the original outline to include chapters on tribal economies (chapter 4), Indian country criminal jurisdiction (chapter 5), the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.), and, perhaps most dauntingly, the Indian Gaming Regulatory Act (25 U.S.C. § 2701 et seq.). Ultimately, the goal is to address the “low-hanging fruit,” to borrow a principle adopted by the D.C. Circuit in the long-running Cobell litigation. Cobell v. Salazar, 573 F.3d 808, 815 (D.C. Cir. 2009). Even so, it may be the better part of a decade before we reach the conclusion.
The process by which draft portions of the restatement become approved by the Institute is both arduous and exhilarating. When the reporters prepare a draft, say of chapter 1, the draft is presented to a body of advisers consisting of a few dozen practitioners, academics, and judges. Each word in the black letter law, comments, and illustrations is examined carefully by the most respected and renowned experts in the field. We hash out the language over the course of a day; then we continue to engage through correspondence throughout the year. When the reporters prepare a new draft in light of the recommendations of the advisers, the draft is presented to the Institute Council and eventually to the entire membership gathered at the annual meeting. Each time, the drafts are examined line by line. If the Council and the membership approve, the draft becomes the official position of the Institute.
Tribal advocates might wonder what the benefit is to cementing federal law that many consider to be grounded in settler colonialism and even outright racism. This is a real concern for the tribal members and advocates who are members of the American Law Institute and who serve as advisers and in other roles with the project. And there is spirited intellectual engagement on various sides of each doctrine in question, requiring compromise at every turn.
But to paraphrase a former student of mine—the problem isn’t that Indian law is bad; it’s that the judges and government officials don’t always comply with it. The restatement project, hopefully, will encourage courts and policymakers to respect foundational principles of federal Indian law, just as the Supreme Court did in Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014). As Indian country observers already know, that decision reaffirmed that Indian nations are immune from suit absent a waiver by the tribe or abrogation by Congress. Justice Elena Kagan’s majority opinion grounded the Court’s analysis in the Indian Gaming Regulatory Act, cementing the clear statement rule—that Congress must clearly state its intention to limit tribal sovereignty before the courts will so hold—as a path-marking principle in Indian law. Contrast that opinion with Justice Antonin Scalia’s dissent. He had previously voted to affirm tribal sovereign immunity in 1998, Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998), but, putting on his policymaking hat in Bay Mills, changed his mind.
The restatement will not prevent judges from voting in favor of their policy preferences, but its existence may be influential enough to discourage judges and policymakers from generating uncertainty in the field. At least, that is one of our goals.